State v. Finkelstein

191 S.W. 1002, 269 Mo. 612, 1917 Mo. LEXIS 125

• Court: Supreme Court of Missouri
• Decided: January 29, 1917
• Status: Published

Opinions

REVELLE, J.

So much of the evidence as is pertinent here is: The defendant is a married man; on September 12, 1915, his wife absented herself, going to a hotel, where she took up residence with the deceased and a woman with whom he was unlawfully cohabiting, all occupying the same room. On the night of the 12th of September, 1915, the deceased brought a man by the name of Belrose to the room, evidently for the purpose of illicit relations with the defendant’s wife. This she resentéd, and as a result of the disturbance which ensued, the deceased was required to leave the hotel. The following day the two women and the deceased removed to another place. Shortly thereafter the defendant called upon Belrose and made threats against both the deceased and Belrose. The deceased was informed of this and thereupon stated to the defendant’s wife that he and Belrose were going to kill the defendant. On the same night, the defendant and the deceased met, and the deceased made two unsuccessful attempts to discharge his pistol at and against the defendant. On that night and at about one o’clock thereafter, the deceased told the defendant’s wife that had his pistol discharged as he had intended, the defendant would then be dead. This information was communicated by the wife to the defendant. On the following day the defendant and the deceased met at 22nd and Olive Street, the deceased inquiring whether the defendant really desired to ascertain the whereabouts of his wife. • Upon receiving an.affirmative reply, the defendant and the deceased walked a short distance, when the shooting took place. The State’s evidence discloses that the defendant shot twice while the deceased was running from him, both of which struck the deceased in the back, and either of .which was fatal. The defendant’s evidence tended to show that immediately prior to the shooting, the deceased, after indulging in certain profanity, pulled from his pocket a pistol, which was instantly seized by the defendant, and that the same was thereupon twice discharged.

Setf-Defense°n I. If the judgment in this case cannot be upheld it is because the court did not submit to the jury the alleged issue of self-defense, or because ^ §'ave a cautionary instruction as to the testimony of the defendant and his wife.

As to the first assignment, we start with the major premise that where there is substantial evidence of self-defense in a case, the defendant is entitled to an instruction upon that theory, even though such evidence comes wholly from the accused himself'. [State v. Weinhardt, 253 Mo. 629; State v. Bidstrup, 237 Mo. 273; State v. Richardson, 194 Mo. l. c. 344; State v. Arnett, 258 Mo. 259, 260.]

There is in this case, for the purpose of this point, ample evidence that the deceased had not only previously threatened, but had, a few days prior to the homicide, actually attempted to take the life of the defendant, his effort being unsuccessful merely because of the failure of his pistol to work as intended.

For some days the defendant’s young wife, having deserted her husband, had been living in rather questionable quarters with the deceased and his companion, and the deceased had importuned her to yield to illicit relations with at least one of his friends. The defendant, while seeking his wife’s whereabouts, came in contact with the deceased, who, after a short conversation, in which he reminded the defendant that he had intended killing him on a former occasion, drew a pistol, which the defendant instantly seized, whereupon the same was twice discharged. Had the testimony of the defendant here ended, there could be substantially no doubt as to the propriety and necessity of an instruction on self-defense, since we would have a case of former threats, an immediately prior deadly assault, a wicked motive and a demonstration oh violence clearly presenting the appearance of impending danger. With these facts in evidence. does the bare, bald statement of the defendant that the shooting was accidental, malicious, or in self-defense, become binding for tbe purpose of determining tbe law¶ Had the defendant followed bis statement of facts with tbe conclusion that he acted in self-defense the State’s argument against an instruction on this phase would be without basis, it being conceded that under such circumstances the instruction should have been given. Instead of this, be stated that the shots were accidentally fired, and it is upon this that the State relies in justifying the trial court’s refusal to give the instruction.

This argument, when reduced to its last analysis merely means, that after the facts have been detailed, the conclusion of the defendant thereon determines the law of the case. This is not tbe law of tbe land. There was other and ample evidence contradicting the defendant’s statement and tending to show that tbe shooting was not accidental, and unless this were true tbe verdict of guilty would have to be interfered with on other grounds. Tbe defendant testified that at the time of the shooting he was thoroughly excited, and under the circumstances, a normal man would be. Tbe jury might reasonably reject bis statement that the shooting was accidental, believing tbe other evidence on this phase, and yet believe tbe remainder of his and his wife’s testimony which tended to show that be was justified in acting in self-defense. With the facts before it, the jury was no more bound by the defendant’s statement that tbe shooting was accidental than it would have been had he bluntly stated that it was in self-defense. Of course if tbe State’s evidence as to all tbe facts and that the deceased was shot in the back is believed, there is no room for self-defense in the case, but, regardless of this, the defendant had the right to have the theory of his defense properly presented and definitely determined by the fact-tryers. It is our opjnion that an instruction on self-defense should have been given and that tbe failure of tbe court to submit this issue, requires a reversal of tbe judgment.

Cautionary Instruction. II. As with Banquo’s ghost, the question of the propriety of the cautionary instruction on the testimony • of the defendant and his wife, will not down. My views on this subject are fully expressed State Evans, 183 S. W. 1059, and to these I still adhere. While the instant case is one which to my mind comes near the danger line, it is unnecessary to determine the question in view of the error heretofore pointed out and because of which the judgment is reversed and the cause remanded.

PER CURIAM:

This opinion of former Judge Revelle, being up for consideration By the Court in Banc, the result of the same is adopted By such court.

Walker, J., concurs in first paragraph of the opinion and in the result; Graves, C. J., concurs in the result of the opinion in a separate opinion, in which separate opinion of Graves, G. J., Bond, Blair and Woodson, JJ., concur; • Faris, J., dissents in an opinion in which Williams, J., concurs.